 |
| John L. Hill |
On May 10, 2019, during an undercover police operation called Project Big Car, Richer took part in a fentanyl transaction with an undercover officer. Officer Wong had arranged to purchase the drug from a known dealer, Jovane Jolly, whom he had previously bought from.
At the arranged meeting in a Mississauga, Ont., apartment parking lot, Jolly joined Officer Wong in his vehicle and made a call to coordinate the deal through a third-party supplier. After about an hour, Richer arrived, was introduced as “Sarah,” and provided key details about the transaction. She explained the supplier’s trust in her, the need for upfront payment,
Aryo Hadi: ISTOCKPHOTO.COM
Richer later told a jury that she was pressured into the transaction by her former partner and fellow drug user, Duncan Mastro, out of fear that she and her son would face physical assault if she refused.
The supplier, Daniel Kochanska, then arrived. Richer and Jolly escorted Officer Wong to his vehicle, where the drug purchase was completed. Richer waited outside during the transaction. She was later arrested and charged with trafficking fentanyl, contrary to s. 5(1) of the Controlled Drugs and Substances Act.
The appellant challenged her conviction for trafficking fentanyl, raising issues of duress and alleging that the trial judge provided improper instructions to the jury regarding her previous drug purchases.
The appeal mainly focused on the issue of duress from Mastro, a man with a history of violence towards her, including choking her and threatening her family. She stated she was afraid because Mastro, who was using Xanax on May 10, had previously been violent while under the influence of the drug.
The trial judge ruled there was no evidence of a threat close enough in time to the offence that would justify submitting the defence of duress to the jury. He determined that, although there was evidence of past violence, there was no current or implied threat directly connected to the trafficking incident on May 10.
The appellate court found no legal error in this decision. The judge applied the correct legal standard, noting that for duress to apply, there must be a real threat of death or bodily harm, proximate to the offence, and there was none in this case. The defence lacked an air of reality of an immediate threat of harm (R. v. Cinous, 2002 SCC 29).
During the trial, Richer’s counsel had elicited evidence that both she and Mastro had a fentanyl addiction, and that she regularly bought drugs from Kochanska, becoming familiar with his methods. The trial judge included a similar fact evidence instruction, telling the jury they could consider her past drug purchases as part of a potential “pattern of similar behaviour” that might support a finding she trafficked fentanyl on May 10. However, he also warned them not to interpret this evidence as indicating she had a bad character or was guilty solely based on her past.
However, the appellate court determined that the judge made an error in giving this instruction. It constituted a misdirection, which breached the judge’s duty to provide correct guidance (R. v. Abdullahi, 2023 SCC 19). The Crown neither requested such an instruction nor argued that the prior conduct was admissible to prove a fact in issue. Since similar fact evidence is generally inadmissible unless its probative value outweighs its prejudicial effect (R. v. Handy, 2002 SCC 56), the judge should have either issued a more specific instruction or omitted one altogether.
While the judge aimed to prevent the misuse of the evidence, the instruction may have improperly encouraged the jury to infer guilt from prior conduct that was not properly connected to the offence charged. Although the trial judge made an error, the curative proviso would not be applied because it did not cause a miscarriage of justice.
At trial, the defence requested a conditional sentence, but the trial judge accepted the Crown’s position and sentenced the accused to four years to uphold the principle of specific deterrence.
At the time of the offence, the appellant was addicted to fentanyl and not living with her son. However, by the time of sentencing, she had made significant progress: completing a methadone program, remaining drug-free since March 2021, finishing a PSW course, securing full-time employment, undergoing counselling, and regaining custody of her son, who now lives with her full-time.
While the trial judge acknowledged her achievements, he contradicted himself by praising her progress in some parts of his reasons, yet calling her efforts “hardly stellar” elsewhere. He stressed the need for specific deterrence, suggesting she might relapse despite evidence showing she had distanced herself from the drug culture. The appellate court found this reasoning contradictory and concluded it downplayed her rehabilitation, which was a sentencing error. The trial judge also failed to consider the impact of incarceration on her son, who had greatly benefited from their restored relationship and her stability. The failure to address the family separation consequences, despite their relevance under R. v. Habib, 2024 ONCA 830, further undermined the appropriateness of the sentence. The appeal court imposed a three-year sentence.
In so doing, defence counsel on appeal advanced the law by having the court establish the limits of specific deterrence.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.